Buscador de jurisprudencia

The father was a citizen of Egypt and the mother a citizen of Ukraine. The mother had a child from a previous relationship and the parents had two children together, born in 2019 and 2020. All the children were Ukrainian citizens. 

In 2022 the mother moved to Canada with the children, each with Canadian-Ukrainian Authorization for Emergency Travel (“CUAET”) visas, which permitted Ukrainian citizens to reside in Canada for three years. The father stayed in Dubai to obtain a Canadian work visa. 

The mother gave birth to a fourth cild (the third child of both parents) in 2023. The father moved to Canada later that year. 

At the end of 2023 the parents’ relationship began to deteriorate. The mother claimed the father had committed domestic violence and the father claimed the mother had abused one of the children. 

In 2024 the mother insisted that the family travel to the United States to renew the children’s Ukrainian passports, claiming this could not have been done in Canada due to a two-year wait. The father felt he had no viable alternative but to comply. He anticipated that it could take weeks or months and so purchased one-way tickets for the family. The father claims he never consented to the children remaining in the United States for longer than was needed to renew their passports. 

Once in New York the mother insisted that the family make an application for refugee status. The father did not agree because he would then be unable to travel back to Egypt to see his family and the family’s life was in Canada.

The father returned to Canada in August 2024. In November of that year he made an application under the 1980 Hague Convention for the return of the children.

Return ordered.

Habitual Residence - Art. 3

The Court found that the the children were habitually resident in Canada as this was the last shared intent of the parents and the children had not “acclimatized” in New York to the extent that their habitual residence had shifted.

Settlement of the Child - Art. 12(2)

The Court rejected the mother’s argument that the children were settled in the United States as less than one year had passed between the date of wrongful retention and the application for return.

Grave Risk - Art. 13(1)(b)

The mother failed to show by clear and convincing evidence that returning the children to Canada would expose them to a grave risk of harm (or violate fundamental rights).

Human Rights - Art. 20

The mother’s claims that the children would be denied access to education in their religious tradition, lack healthcare, and be exposed to danger do not rise to the level contemplated by the Article 20 defense. There was no evidence before the Court that return to Canada would deny the Children access to education in their Muslim faith, as the Children were previously and successfully enrolled in school in Canada.

Consent - Art. 13(1)(a)

The Court found that the father had never consented to the children’s permanent stay in the United States. 

In fact, his lack of consent was evidenced by his contacting the RMCP and NYPD and expressing concern that the mother would either take the children or not turn over their passports. This indicated that he believed the move was temporary and later resisted permanent retention.